Net Neutrality in Canada: We have a problem

Adapted from my reply to the CRTC’s proceeding on whether wireless carriers unfairly disadvantage Canadians’ use of the mobile Internet. Yesterday, the record of that proceeding came to a close, and now the Commission will weigh the evidence and make a decision.

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Canada, we have a problem. It is a problem which affects the millions of Canadians who subscribe to services from Bell Mobility, Rogers, and Vidéotron, if not more.[1] It is a problem that, over the course of the last 6 months, our wireless carriers have chosen to ignore, deny, and deflect, rather than attempt to explain or justify. This problem requires consideration of the broadcasting system, but it is not in essence about broadcasting. It is about the Internet. This is a problem that affects the public in general, as the companies responsible for this problem control infrastructure[3] widely relied upon for mobile access to the Internet, and therefore the manner in which they carry on business is affected with the public interest.[4] In fact, I brought this problem to the Commission’s attention last November because Bell, a company whose works are supposed to be “for the general advantage of Canada”,[5] is not only part of the problem, but declared its contribution seemingly with pride to the media this past summer.[6]

The problem at issue is that the vertically integrated wireless carriers are unduly and disproportionately restricting Canadians’ freedom to use the Internet, despite having no legitimate reason to do so. In 2009, the CRTC stated that “[a]t the core of the debate over “net neutrality” is whether innovation will continue to come from the edges of networks, without permission.” It asked “Will there continue to be rapid and uncontrolled innovation in computer communications? Will citizens have full access to that innovation?” The outcome of the CRTC’s mobile TV proceeding will determine whether the wireless carriers will, at their sole prerogative and by virtue of their gatekeeper status, be allowed to pick winners and create losers in the evolving sphere of mobile broadband content and applications. I argue that they should not.

The Commission went on to note in the Network Neutrality framework that “due to the limited capacity of their networks, carriers have legitimate interests in the management of these networks.” The wireless carriers are permitted to apply economic Internet traffic management practices (otherwise known as “usage- based billing” or “data caps”) to curtail Canadians’ use of an otherwise unlimited information resource only because it is believed that such an interest is legitimate, i.e. that traffic management is necessary and proportionate to the task. As I argued in my application of November 20, 2013, and following the incumbents’ resounding victory in the 700MHz auction, this may no longer be the case, or at least it is now clear that the data caps used to restrict Internet access no longer reflect the reality of abundant network capacity.

The carriers have indeed developed networks that can bear the traffic generated by innovative Internet services, and they, in turn, have been empowered to innovate, as is shown by the rapid deployment of LTE networks and the availability of cutting-edge mobile devices. The fact that our wireless carriers earn globe-topping revenues while offering discounted access to the very same networks that provide access to the rest of the public Internet when used to view their own over-the-top services demonstrates that this is true. However, if capacity is sufficiently abundant to support the common carriage of, among other things, carrier- controlled mobile TV services, then by definition so too can all Internet traffic be borne without fear or worry. This shows that differential economic treatment of data traffic based on its source cannot be within the legitimate interests of carriers to manage network traffic. Therefore, by reserving this discounted access exclusively for their own walled gardens, the carriers are unjustly discriminating against their competitors and unduly favouring themselves and customers of their mobile TV services.

The fact that the carriers’ mobile TV services receive preferential treatment while other Internet services are subject to punitive limits is not justified by any argument made by the wireless carriers before the CRTC. Bell and Rogers both argue that the wireless networks you use to access the Internet are actually television networks, and so they claim that net neutrality doesn’t apply. Nevertheless, it has been shown that Bell’s Mobile TV, Rogers’ mobile Anyplace TV, and Vidéotron’s illico.mobile are OTT services just like any other; they are accessed over the Internet on mobile devices, just like competitors’ services; they are interconnected to the public Internet; and they do not employ managed delivery or dedicated capacity. Refusal by Bell to acknowledge that there is an unfair advantage in the first place, or arguments by Rogers that they deserve such an unfair advantage do not constitute a reasonable excuses for these practices. Further, the CRTC’s net neutrality framework provides that:

“When an ISP is responding to a complaint regarding an ITMP it has implemented, it will use the ITMP framework. In doing so, the ISP shall:

Describe the ITMP being employed, as well as the need for it and its purpose and effect, and identify whether or not the ITMP results in discrimination or preference.

In the case of an ITMP that results in any degree of discrimination or preference:

demonstrate that the ITMP is designed to address the need and achieve the purpose and effect in question, and nothing else;

establish that the ITMP results in discrimination or preference as little as reasonably possible;

demonstrate that any harm to a secondary ISP, end-user, or any other person is as little as reasonably possible; and

explain why, in the case of a technical ITMP, network investment or economic approaches alone would not reasonably address the need and effectively achieve the same purpose as the ITMP.” [6]

None of the companies have satisfied these criteria, despite the fact that the CRTC requires that they do so when facing a complaint such as the one that they accepted from me last November. Here is how they fail to live up to the test:

What need can preferential data caps for carriers’ own mobile OTT services be designed to achieve, other than to stifle competitors by making Canadians’ access to the rest of the Internet more expensive by comparison?

Giving customers of carrier-owned mobile TV services access to networks at discounted rates that are not designed to recover the cost of the service results in broad discrimination against other customers, who wind up paying for that access, and to competitors whose services are made less affordable as a result.

By tying their OTT services to mobile subscriptions, the carriers restrict choices available to customers of other ISPs, and as a result those ISPs find themselves at a competitive disadvantage.

There is no technical ITMP applied – mobile TV services travel over the same airwaves, towers, and fibre cables as all other traffic – and therefore there is no reason that they should be given an economic advantage.

Additionally, no wireless carrier has satisfied the reverse onus provisions of subsection 27(4) of the Telecommunications Act, nor the similar provision found in the Digital Media Exemption Order, which require them to demonstrate that their practices don’t unduly disadvantage competitors or the public in general.

In light of the evidence brought before the CRTC over the past half year by myself, the Public Interest Advocacy Centre, OpenMedia, CNOC, Bragg Communications, Vaxination Informatique, Dr. David Ellis, Steven May, Dr. Fenwick McKelvey, and Teresa Murphy, I reiterate my request for the Commission to prohibit the use of unduly advantageous data caps for the wireless carriers’ mobile TV services, which serve no purpose other than to restrict Canadians’ right to use the Internet and stifle innovation in the wireless sphere.

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1] I have recently learned that a company called Sogetel Wireless is also offering a mobile TV product similar to the one offered by Bell et al. See: http://www.sogetel.com/mobilite/options “Télé Mobile”.

2] Although licenses are issued for the exclusive use of particular bands of radio frequencies (“spectrum”), these frequencies constitute a resource which remains public property. The carriers acknowledged this last summer when they ran an ad campaign arguing that “like water, Canada’s airwaves are a limited, precious natural resource.” See also: Taylor, Gregory, “Oil in the Ether: A Critical History of Spectrum Auctions in Canada,” Canadian Journal of Communication, Vol 38(1). 2013.